01 September 2014
Dear Colleague,
Follow up from legal parenthood audit
I wrote to you in February to highlight the serious potential implications of failing to ensure that consent to legal parenthood is properly taken, and to ask you to carry out an audit of parenthood consent at your clinic.
The implications of failing to properly take such consent were demonstrated in a High Court case last year where a woman lost her right to parenthood. When discrepancies in consent were found at another of our licensed clinics, we asked you to carry out an audit of the records of patients, who were neither married nor in a civil partnership, and who received treatment using donor sperm or embryos on or after 6 April 2009.
I am writing to you to share the findings of this audit - which worryingly highlight widespread instances of poor practice in this area. In order to help you take the necessary steps to manage the situation and prevent mistakes like these from happening in the future, within this letter I enclose:
- Findings from the parenthood audit
- What you can do if you identify anomalies, including a case study from Bartholomew's Hospital (Barts)
- How to avoid mistakes in the future
- Information on consent workshops
- Annex A provides general questions and answers about legal parenthood and consent.
Findings from the parenthood audit
Almost all clinics have now completed their audit – for which I am grateful. If you have not yet completed your audit or notified your inspector please do so as soon as possible. If you have identified anomalies, you should inform your inspector of what action you will be taking, and what measures you have put in place to prevent mistakes from happening in the future.
Nearly half of all clinics that have responded reported anomalies with their legal parenthood consent. Given the potentially serious implications for the affected patients and their partners this finding is of real concern to the HFEA.
We now wish to share with you the common themes we found from the audit so that you can take the appropriate action to ensure these errors do not arise in your clinic. The three most common serious mistakes that have been highlighted to us were cases of:
- Absent WP or PP forms
- 2. WP or PP forms completed after treatment
- 3. WP or PP forms completed by the wrong person
What you can do if you identify anomalies
If you have any doubt about the validity of legal parenthood you should seek your own legal advice. You should also inform the affected patients and their partners.
We cannot provide you with individual legal advice as it is difficult to generalise from one case to another. The High Court case last year showed that where legal parenthood is challenged in court, a person can lose their right to legal parenthood if provisions of the Act have not been followed. However, a deficiency in the consent process does not mean that a person will automatically be deprived of their status as legal parent and the outcome of any particular case will be highly dependent upon the individual circumstances.
For further advice on what you can do if you identify anomalies at your clinic, see here for a case study from Bartholomew's Hospital (Barts) , which I hope you will find useful. Barts was one of the first clinics to carry out an audit of their legal parenthood consents. After uncovering a number of discrepancies Barts were quick to seek advice and act in a way that promoted openness and honesty with their patients.
How to avoid mistakes in the future
All clinics should have adequate procedures in place to ensure that consent to legal parenthood is properly obtained.
Clinics should ensure that its staff:
- are adequately trained to ensure that consent to legal parenthood is properly obtained,
- provide proper information to people seeking treatment about legal parenthood, or direct those people to suitable sources of information, prior to treatment,
- provide patients with a suitable opportunity to receive counselling about the implications of treatment in these circumstances, prior to treatment
- record the offer of counselling in the patient’s notes, including in cases where the counselling does not take place; and
- maintain clear and accurate records that demonstrate the appropriate consent forms completed by both the birth mother and non-birth partner.
Consent workshops
We are organising a series of good practice workshops for clinic staff on consent through November 2014. We would encourage all clinics to send staff to one of the workshops, but particularly those who identified anomalies in their legal parenthood audit.
The workshops will allow you to share best practice with colleagues at other licensed clinics, and help us identify opportunities to further support clinic staff and patients to ensure that consent is properly understood.
Please see here for further information about the workshops.
Peter Thompson
Chief Executive
Human Fertilisation and Embryology Authority
Annex A: General questions and answers about legal parenthood and consent
What does the law on legal parenthood mean for clinics?
From 6 April 2009 partners of women to whom they are not married or with whom they are not in a civil partnership will only be recognised as the legal parent of any child born from treatment with donor sperm or embryos if written consent has been given before gamete or embryo transfer takes place.
Clinics should use the WP and PP forms to obtain these consents.
Clinics are required to:
- offer counselling about the implications of receiving treatment following consent to parenthood, prior to treatment being provided
- provide appropriate information to patients and their partners about the implications of consent to parenthood.
- obtain appropriate consent to parenthood before donor sperm is inseminated or before embryos created using donor sperm are transferred
- notify patients or patient partners if consent to parenthood is withdrawn or changed.
What is legal parenthood and is it the same as parental responsibility?
Legal parenthood gives a lifelong connection between a parent and a child, and affects things like nationality, inheritance and financial responsibility.
Parental responsibility is not the same as legal parenthood. A person with parental responsibility has responsibility for involvement in the key day-to-day decisions about the care of the child: for example they can give consent to the child’s medical treatment and make decisions about their education and religion.
How can patients and their partners become legal parents (where patients, who were neither married nor in a civil partnership, received treatment using donor sperm or embryos on or after 6 April 2009)?
To obtain legal parenthood:
- The woman who gives birth to a child is automatically the child’s legal parent.
- The non-birth partner must give their consent prior to treatment in order to become the legal parent of any child born. The woman being treated must also give consent to their partner becoming the legal parent of any child born, prior to treatment taking place.
How can patients and their partners acquire parental responsibility (where patients, who were neither married nor in a civil partnership, received treatment using donor sperm or embryos on or after 6 April 2009)?
To acquire parental responsibility (or in Scotland, parental responsibility and rights):
- The woman who gives birth to the child automatically has parental responsibility for the child
- The non-birth partner will acquire parental responsibility for a child when registered on the child’s birth certificate.
Legal parenthood cannot be gained by simply being named on the child’s birth certificate. In fact, the non-birth partner should only be registered on the child’s birth certificate if he or she is the legal parent of the child. The partners’ parental responsibility could be challenged if he or she is not the legal parent of the child.
If, following taking legal advice the non-birth partner is not the legal parent of the child born as a result of the treatment, how can the partner become the legal parent?
The only way the partner can obtain legal parenthood is by adopting the child. Parental responsibility can be obtained by means of a parental responsibility agreement or order. You should seek legal advice and contact the patients and their partners if there is a risk to their legal parenthood status.
Some patients may find this news upsetting. You should think carefully about how to handle those who are affected and how you can support them through this process.
I have been told that the patient and non-birth partner can complete the parenthood consent forms after treatment. Is that true?
No. The non-birth partner can only become the legal parent if the consent forms are completed before treatment.
We have a case where a patient and her partner have completed the consent forms incorrectly. Will this affect the parenthood status of the non-birth partner?
This will depend on the individual facts of the case. We are unable to provide legal advice for individual cases. You should seek legal advice and contact the patients and their partners if there is a risk to their legal parenthood status.
We have a case where parenthood forms were not completed but the birth mother and non-birth partner are named on the child’s birth certificate. Does this mean that they are both the legal parents?
Not necessarily. Where consent is not provided prior to treatment, the non-birth partner may not be the legal parent of the child – even if he or she is named on the child’s birth certificate.
Why is it important to inform the patient and their partners if there is a risk to their legal parenthood status?
The court case last year showed that where legal parenthood is challenged in court, a person can lose their right to legal parenthood if the provisions of the Act have not been followed.
Legal parenthood is important because it gives a lifelong connection between a parent and a child, and affects things like nationality, inheritance and financial responsibility.
Where can I find out further information?
See our Parenthood FAQs, which were issued in 2009, for further information about legal parenthood scenarios.
Page last updated: 01 September 2014